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International Law

The 21st Century: The Century of Reforming The UN Security Council

Raiis Gassanly

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Reforming the UN SC with the veto power only of the UN Secretary General and a new article of the UN Charter “On the Rights of Nations to Self-Determination” will eliminate the aggressive fervor of the USA, Russia and China on inciting regional and world wars on our Planet.

On July 19, 2017, at the meeting of the UN General Assembly devoted to the reform of the UN SC, the Deputy Permanent Mission of Russia to the UN V. Safronov raised the issue of the reform of the UNSC. He proposes to expand the composition of the Security Council at the expense of only the countries of Asia and Africa, which is a formal attitude towards the UN, as the most important organ in the fate of the countries of the world in maintaining international peace and security on our planet.

In my opinion, the expansion of the UN SC should cover the most important countries from all continents of our Planet. At the same time, in the absence of members rights to the veto, which will allow discussing in the UN SC the most important problems of the countries of the world with relevant resolutions for the reality of their execution.

Below I cite my draft reform of the UN SC, which differs radically from the proposal of the representative of the Russian Federation, the United States and other countries to the United Nations.

REFORMING THE UN SC WITH THE RIGHT OF THE VETO OF THE UNSC

Mankind is at the forefront of a direct collision between the United States and Russia or China on the basis of their geopolitical and geostrategic interests in their regions and countries of the world. As a fact, the UN SC has long been in the position of a “Chinese observer” – a passive observer of the aggressive actions of the leading empires with their invasions into the countries of the world, beginning in the middle of the XX century to this day in Asia, Europe and the Middle East.

And as the consequences of these invasions, there is complete ruin of the regions and the infrastructure of countries, the massive death of civilians and the flow of refugees, which, in turn, leads to global problems in Europe and the USA.

This bloody large-scale process continues to this day since 2000 year, where, finally, from 2015 year, the interests of the powers of the USA and Russia collided directly with their heads in the Middle East in order to display their monopolistic geostrategic positions in specific regions of the world. In turn, the confrontation between the US and Russia is urgently needed by the time of the shaky regime of President Vladimir Putin, when the material condition of the population and the country’s infrastructure is cracking along all the seams with a weak economy.

A rhetorical question arises: what is the leading role of the UN and its main body of the Security Council, as an international organization of all countries of the world? The UN was created, on the one hand, to prevent world and regional wars with disastrous consequences due to Man’s fault, as heads of leading empires and countries of the world. On the other hand, to prevent natural disasters and disasters for the population of the Planet, such as nuclear power plant explosions, tsunamis, earthquakes, meteorite falls, landslides, tectonic collisions and much more.

The creation of the UN in 1945 pursued international cooperation of the countries of the world in political, economic, scientific, cultural, sports and other types of relations, regardless of their political, social, national and religious conditions.

The basis of the UN SC is the primary responsibility for maintaining peace and security in the countries of the world, suppressing not only regional and world wars, but also separatism on interethnic and interreligious soil. At the same time, all UN members are obliged to obey the decisions of the UN SC and their implementation.

A rhetorical question arises: why does the UN SC, from the date of its emergence to this day more than 70 years, fail to fulfill its direct responsibilities for maintaining peace and security, against the background of the regional wars in the world? Why does the UN SC not consider the causes of the emergence of aggressive bloody wars at the level of civilian deaths, mass refugees and the devastation of their cities by major powers? Why does the UN SC not give a proper assessment of the actions of countries like the USA, the former USSR, its successor to Russia and other specific countries of the world? Why does the UN SC not control over the years the course of action of the resolutions on specific countries, which it adopted, and does not put forward at the same time sanctions? Who and why is interested in this when the bill for these wars is no longer in millions and billions of dollars, but in the end in trillions? Whereas the US debt is $ 23 trillion, when the largest historical power of the USSR disappears, and the economy of its successor to Russia today is not detached from the muddy bottom.

According to the UN Charter, countries of the world have authorized the UN SC to “investigate any dispute or situation that may lead to international friction or cause a dispute to determine whether the continuation of this dispute or situation could not threaten the maintenance of international peace and security.” However, even today, the UN SC ignores all bloody events in the countries of the world. What is the reason for not fulfilling the duties of the UN SC?

As a vivid example, the outcome of the Second World War in early 1945 was predetermined by the defeat of Nazi Germany, and at the same time aggressive Japan, and does not give a proper assessment of these US nuclear strikes with the massive deaths of more than 200 thousand people and the complete devastation of two cities in Japan. And this, in turn, allows the former USSR in 1961 to provoke the Cuban nuclear crisis with the United States, and then its successor Russia to threaten nuclear ashes for the United States and European countries.

There was also no assessment of the actions of the authorities of England, which led to the ruins, like Stalingrad in 1943, the beautiful city of Dresden with historical museums just for the fact that the world criminal of Nazi Germany Adolf Hitler steadily bombed and destroyed their cities.

So, with the tacit consent of the UN SC, the wars since 1945 have not only stopped, but, on the contrary, have become more frequent in the regions of the world due to the following, in my opinion, reasons. These include the achievement of priorities of the geopolitical and geostrategic interests of the nuclear superpowers in the regions of the world; dividing the world with the destruction of contradictory social systems, capitalist or formerly communist, and today simply Putin’s; intervention in dictatorial and authoritarian countries with their centuries – old Muslim orders and traditions in order to introduce the “democratic values” of Europe; the implementation of “historical justice” with the aim of reviving the centuries – old imperial territories like Tsarist Russia; the emergence of two or more sovereign states for the same nation in the absence of an article in the UN Charter “On the Rights of Nations to Self-Determination” with the dual policy of the countries.

With the collapse of the USSR, the hegemony of the one polar world politics of the United States over the countries of the West and the world is established. And this, in turn, allows the United States to pursue an independent foreign policy in the world, ignoring their consideration and the consent of the UN SC itself.

As two vivid examples of this, on the one hand, the United States, using the tragedy of September 11, 2001 in New York, killed about three thousand civilians in the skyscrapers at the hands of the terrorist organization Al Qaeda. On the other hand, the former USSR in 1979, without the resolutions of the UN Security Council, they sent their troops into Afghanistan under the slogan of creating “democratic institutions” in the ancient Muslim country. And this process continues to this day at the level of the civil war in the country of Afghanistan.

Without the relevant resolutions of the UN SC, the US in alliance with the countries of Europe has been waging an aggressive war from 2003 to this day in the countries of the Middle East – Iraq, Libya and Syria, with Russia joining in 2015. As a result, a self-proclaimed state of ISIL is born at the level of the ancient laws; complete devastation of cities with a massive death of the population and refugees in millions of people in the countries of the world.

All this speaks of the real viability of the UN regulator and the UN SC itself.

It follows that the Third World Nuclear War has not yet erupted with disastrous consequences for all of Mankind with its possible disappearance, it is necessary to reform the UN SC. At the same time, with all the discussions and resolutions adopted by him, the UN Secretary General should actively participate personally with the sole voting right granted to the UN SC resolutions. For he represents a responsible person for the destinies of the countries of the world – all the UN members, with the goal of actually protecting them the international rights of the countries of the world, regardless of their social systems, as dictatorial, authoritarian or democratic regimes.

The UN SC has the right to “determine the existence of any threat to peace, any violation of peace or an act of aggression and make recommendations or decide what measures should be taken to maintain or restore international peace and security.” The Security Council has the right to impose coercive measures on States violating peace and security, including the use of armed forces and certain sanctions, in accordance with Article 25 of the UN Charter. However, the UN SC cannot really use this right, because its members, like the United States and Russia, pursue a policy of double standard, using the veto right when they need it.

INCREASE IN THE NUMBER OF UNSC UN MEMBERS RIGHT TO VETO

All of the above on the aggressive actions of the powers and countries of the world is explained, in my opinion, on the one hand, by the existence of the rights of the five permanent members of the UN SC to vote, veto for consideration, discussion and adoption of resolutions contradicting their foreign or domestic policy, promoting this geostrategic and geopolitical interests that go against the protection of the rights of civilians and the preservation of their places of residence. On the other hand, the five permanent members of the UN SC are not able to cover and specifically find out the pressing problems in the countries of the world with their solutions.

That is why since 1991, the United States used the veto more than 14 times, and Russia more than 13 times, which resulted in catastrophic consequences in the world, in the examples of the countries of the Middle East, Afghanistan, Ukraine, Azerbaijan, Georgia.

Countries around the world, including personally former UN SG Kofi Annan, made repeated statements on reforming the UN SC with the goal of increasing the number of permanent members, but without making any reservation about eliminating the veto power, which allows imperial countries to manifest geostrategic and geopolitical countries, at the root of their rights interests in the regions of the world.

In my opinion, in view of the above, the reform of the UN SC should be in the following order:

1. increasing the number of permanent members of the UN SC to 15 at the level of strategic and solvent countries – representatives of all continents of our Planet;

2. increasing the number of non-permanent members of the UN SC to 10, periodically replaced after 3 years, taking into account their solvency and significance in the regions of the continents of the Planet;

3. exclusion of the right to vote of the veto of all members of the UN SC;

4. all the issues discussed and the resolutions of the UNSC are adopted taking into account the majority of their votes and

5. oblige active participation in the activities of the UN SC by the UN SG, precisely with his right to vote in veto on questions and UN Security Council resolutions.

The current UN SC permanent members, as the countries of the anti-Hitler and Japanese-Chinese coalitions where the world wars took place, should remain on the UN SC list.

Further, we should take into account countries with their geographical location and importance in the regions of the continents of the Planet by the number of their population, religiosity, the power of their economy and armed forces.

Based on the foregoing, in my opinion:

A. permanent members of the UN Security Council should be: the United States, Russia, China, England, France, Germany, Italy, Ukraine, Kazakhstan, India, Indonesia, Turkey, Egypt, Brazil, Argentina; that is, there are 15 of them, and

B. non-permanent of the UN SC — periodically replaced every three years: Greece (Belgium, Bulgaria, Holland); Poland (Switzerland, Czech Republic, Romania); Denmark (Sweden, Norway, Finland); Azerbaijan (Belarus, Georgia, Armenia); Uzbekistan (Turkmenistan, Kyrgyzstan, Tajikistan); Japan (Philippines, Malaysia, Australia, South Korea); Pakistan (Iran, Saudi Arabia, Iraq); Israel (South Africa, Nigeria, Algeria, Tanzania); Chile (Colombia, Venezuela, Peru); Mexico (Canada. Paraguay); i.e. there are 10 of them.

Thus, in my opinion, the composition of the UN SC should consist of 15 permanent members and 10 non-permanent members. All of them do not have veto power.

In my opinion, a neutral person in the UN should have the right to vote the veto on the topics proposed for discussion and resolutions adopted on them by a majority of the UN SC votes. And this person, who will bear all responsibility for the activities and decisions taken by the UN SC, is none other than the UN Secretary General. This is similar to how in all countries of the world the final solution of the problem of war and peace is provided to the first person of the country – the President or the Premier. And this is my answer to the newly elected 45th President of the United States Donald Trump, who in one of his speeches of December 13, 2016, said: “As for the UN, from January 20, 2017, the organization will be different.” And in his inaugural address, he noted his US vision for the future: “America is first and foremost.” It is his concept of tensile and double meaning. At the same time, he did not mention about the countries of cooperation, including NATO, where the United States plays the leading role. Thus, the EU countries should realize that they can no longer hope for close cooperation and patronage from US.

We must look for ways to strengthen our role, at least in Europe, while not forgetting that it is precisely the reform of the UN SC and with the majority and solidarity of members that will allow them to influence the politics of the world.

It should be recalled that in 2000, the administration of former US President Bill Clinton agreed to expand the UN SC to more than 23 members. However, with the right to vote only to the permanent five members of the UN SC. Since the inception of the UN, the UN SC has been criticized to this day because of the voting rights of its five permanent members to decisions that could harm both their country and others in the world.

I graduated from the energy department of the Azerbaijan Institute of Oil and Chemistry in Baku in 1960. I taught in technical universities of the countries, I have a scientific degree and a title, as well as three author's inventions with certificates of the former USSR.

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International Law

Reimagining the contours of “Common Heritage of Mankind” vis-à-vis right to Health

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Authors: Manini Syali and Vinayak Jhamb*

In the recent meeting of G20, Indian Prime Minister Narendra Modi called for sharing medical research freely and openly between nation states for the development of mankind. This raises interesting questions with respect to re-assessing the existing contours of the Common Heritage Mankind principle (CHM), commonly applied in the context of natural resources. This become important especially in the present context when the entire mankind, as a single unit, is facing an unprecedented challenge in the form of the COVID-19 pandemic.

The COVID-19 pandemic has brought forth unprecedented challenges before the world community and not even a single nation state has remained out of reach of the damage and adverse impacts it can cause. Moreover, it would not be wrong to equate the magnitude of this contagious spread with the two World Wars which the world had the misfortune to witness.

It is also a well-established fact that due to historical as well as socio-economic reasons not all nation states are at an equal footing when it comes to infrastructural development. This in the present context becomes extremely important and places a burden on the developed states to share the health care resources they possess with the other less resourceful countries. It is pertinent to note that an appeal in this regard was also made by the Indian Prime Minister Narendra Modi, at the recent G20 meeting, for utilizing and sharing medical research freely and equally between nation states for the benefit of the entire mankind.

Countries have started working in this direction and the United States has already announced financial assistance of 174 million USD to 64 countries, for effectively fighting the COVID-19 pandemic. Out of this amount, 2.9 million USD is being offered to the Indian government for preparing laboratories, activating case findings and conducting event-based surveillance.

This call made to the World Community to operate as a unified whole for disease eradication is not new and also gets reflected in the goals and purposes for which the World Health Organization was established. Moreover, the nomenclature used for the organization clearly signifies that the focus was on looking at health as a global agenda which goes beyond artificially constructed sovereign borders. Despite existence of a specialized United Nations agency and acknowledgement of right to health as a primary human right by virtue of Article 12, International Covenant on Economic Social and Cultural Rights, there remains a disparity between the world population when it comes to accessibility of health care facilities.

 Moreover, the Doha Declaration on the TRIPS Agreement and public health is a good example which can substantiate the above discussed proposition. The Declaration attempted to reconcile the existing conflicts between Trade Law and Right to Health and also responded to the concerns of developing countries about the obstacles they faced when seeking to implement measures to promote access to affordable medicines in the interest of public health in general. This demonstrates that Health Related rights stand in conflict with parallelly operating legal regime, namely, International Trade Law. The focus of the Declaration remained on the following health related aspects of TRIPS: Compulsory Licensing, Parallel Imports and the Transition Period for Least Developed Countries. Despite existence of such an exhaustive legal regime, health care remains far from becoming universally available. The present article, thus, attempts to analyze whether the scope of health related rights need to be expanded beyond the already existing legal frameworks and whether international law doctrine of common heritage of mankind can encompass universal health care and related aspects.

Common Heritage of Mankind and Healthcare

The term “Common Heritage of Mankind” is a comprehensible term which needs to be explored completely. The fundamental premise of this concept entails the principle of equity in the real sense of the term. It states that all the resources available in different geographical set ups have to be adequately allocated amongst the world population with utmost precision and parity. However, the concept has never been followed strictusensu at the international forefront. It is absolutely unimaginable to think that all the nation-states sharing the global resources equitably. But, one of the major lacunas highlighted by the authors is the lack of considering “health resource” as an intrinsic part of Common Heritage of Mankind. The scholars across the globe have turned a blind eye to this issue since time immemorial. They claim that once this first generation human right enters into the domain of “common heritage of mankind”, it would essentially open up a Pandora box as the first generation human rights of “right to life” which has been enshrined in the International Convention on civil and political rights”. The sanctity of the binding nature of the Convention is beyond debate ,thus, formulating right to health as one of the unmoving legal principles at the international forefront is a herculean task.

Concrete and Express Recognition of Right to Health

This does not mean that the international community has been absolutely oblivious of this issue. However, their efforts have only helped in unifying right to health as a directory measure at the international forefront. The lack of concrete steps in this regard still haunts the international legal regime. The authors under this piece are trying to put across a question in front of the world about the need of having a specific regulation reconsidering the right to health as a valuable resource. The domestic legal regimes very well have their set of standard operating procedures vis-à-vis this issue but the vacuum at the international level still persists.There have been times wherein the expanding contours of trade and commerce have sabotaged public health crisis which is akin to a quagmire of innumerable problems which have no definite solutions. Public health is one of those invaluable assets which have to percolate at every level of governance. So, adequate steps need to be taken in this regard and this can only be done with the co-jointed efforts of the international community members and the civil societies operating independent of any governmental control.

Unprecedented Times call for Unprecedented measures

The contemporary crisis which has taken a vice grip of everyone across the globe has opened up our narrow minds. The problem of Corona Virus which has become an intrinsic matter of discussion in every household across the world today is increasing exponentially. This emanated from a small town of China named as Wuhan and spread like a wildfire across the globe is highly uncalled for. The plight of Italy, Spain, USA and Iran cannot be attributed apt words. The entire globe is facing an existential crisis because the governments have always lived in delirium and never abided by the principle of “Prevention is better than cure”. India also is facing the brunt of this virus with more than 1200 positive cases registered by the Indian Council of Medical research in consonance with the Health Ministry of India. So, the problem which perpetuated in China is taking a toll on all of us out there. But, at this juncture, the authors want to pose a question to the world- All those medical equipments and technologies which the countries are intending to import, should they not be readily available without any charges in such times of need? Or will excessive imports by these needful countries not disturb their Balance of Payment fulcrum? These questions might have their roots embedded in the economic realms but have a specific legal tangent attached to them.

But, the authors just intend to highlight the immediate need of having health as a specific resource which can comfortably fall under the domain of “Common Heritage of Mankind”. If the news agencies are to be believed, China has promised to help the other countries in distress, but then a thought pops up about the existence of IPR issues while sharing the requisite vaccine? Or what shall be the opportunity cost which China shall ask for in this process? These questions are popping up time and again in our minds and the authors are absolutely not familiar with any concrete solution other than making public health a resource under the common heritage of mankind.

Conclusion

Though it has been rightly said by Robert Merton that “It is good to ask questions but it is always better to find solutions to those questions”, but such complex set of questions cannot be answered in one go. They need proper analysis of the problem and then only certain concrete measures could be thought of. The idea behind writing this piece was to ignite the spirit of research in establishing the inter-relationship between the commonly found concept of “common heritage of mankind” and right to health as a resource. It would be highly falsified on our parts if we bombard the readers with a special set of suggestions because the cost-benefit analysis of each of those suggestions is varied and comprehensive. Thus, the authors have left the door ajar so that the readers are able to familiarize with the given set of problems which are staring us and then accordingly ponder about the need of expanding the contours of “Common heritage of mankind”.

*Vinayak Jhamb is a Research Scholar at University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, Delhi

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International Law

Curious Case Of Nirbhaya And International Court Of Justice

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On December 16th, 2012, a 23year old physiotherapy intern known as Nirbhaya was gang-raped and heinously murdered in a moving bus in Delhi, she died subsequently in a hospital in Singapore. The aftermath of the Nirbhaya incident witnessed widespread public outcry, which resulted in the amendments to various provisions of the Indian criminal law both substantive and procedural. Despite the radical reform in the criminal law jurisprudence, the convicts remain defiant and have recently moved the International Court of Justice (ICJ) seeking a stay

On 16th March2020, the Supreme Court of India (SCI) rejected the plea of one of the convicts in the Nirbhaya gang-rape and murder case. The convicts were slated to be hanged on 20th March 2020, following which the convicts have written a letter to the ICJ seeking an urgent hearing to prevent “unlawful execution”. The letter reads as:

“I write to you to request your support and help, in whatever form, to prevent this barbaric and inhumane punishment from being inflicted upon convicts, the death penalty has no relevance in a progressive and modern International era. Inflicting it upon prisoners, who belong to the economically most vulnerable section of society will only serve to take out international forum several steps back.”

Notwithstanding this plea to the ICJ, the convicts were hanged on 20th March. This brief write-up intends to unravel the position of individuals in the ICJ and the progressive mechanism of individual complaint mechanism under international human rights law against the State.

Access to Individual under ICJ

The ICJ is the principal judicial organ of the United Nations(UN) that resolves disputes between States. The issue in the Nirbhaya case with regard to the ICJ is whether individuals can approach the ICJ claiming remedies against the State, the subject matter of which is purely domestic or in short does the ICJ have jurisdiction to entertain the claim made by the convicts. According to the former Supreme Court judge of India BN Srikrishna, the ICJ has no jurisdiction to order a stay; his point is the ICJ cannot act as a court of appeal, this is true because the jurisdiction of the ICJ is based on the consent between States and not individual, this is also reflected in Article 34 of the Statute of the ICJ (ICJ Statute). Further, the entire judicial process in the Nirbhaya case was proper, ie. hearing from the trial court to the Supreme Court; the convicts were provided several opportunities to file review and curative petitions. The larger question that needs to be addressed is the relationship between individuals in the ICJ. Firstly, over the years several judges and scholars of international law have argued for amending Article 34 of ICJ Statute to include individuals; moreover ,the Advisory Committee of Jurist, who drafted the PCIJ Statute ( Predecessor to the ICJ Statute) deliberated in detail the issue of locus standi; unfortunately, lack of support from majority saw the idea being dropped. Secondly, the famous dictums in the PCIJ and ICJ refer to the fact that injury to the individual constitutes an injury to the States, as asserted in the 2007 Diallo (preliminary Objection) diplomatic protection of the aliens extends to the protection of human rights; however, the extent and scope of these human rights are very much limited. Thirdly, according to Hersch Lauterpacht, the original purpose of the ICJ was to be a court of International Law, rather than a human rights court; thus individuals approaching the ICJ demanding Justice would require to circumvent the original intention of the drafters. Fourthly, post world war 1  witnessed the formulation several multilateral treaties to safeguard the rights of minorities, the PCIJ and ICJ through its advisory opinions had touched upon these treaties in the context of individual rights; however, the PCIJ and ICJ consistently refrained from invoking presumption against individuals rights and duties. Fifthly, the sole decision in the ICJ that has some proximity to the Nirbhaya case is the LaGrand case, in which the ICJ affirmed that individual might possess direct rights under treaties, however, in the La Grand case, the ICJ did not equate the right of consular access as human rights and thus adopting a strict state-centric interpretation. Moreover, the Judgement acknowledges the fact that the individuals approaching the ICJ could invoke rights through the national State.

Sixthly, in international law, the concept of state immunity has trumped human rights or individual rights, in the Arrest warrant case and the Jurisdictional immunities case the ICJ firmly establishes the fact that immunity overrides international crimes, although the backdrop of these cases significantly differs from Nirbhaya, the undisputed fact that remains is State is protected under the ambit of immunity. Taking all these factors into account, it was on the expected lines that the convicts in the Nirbhaya case would be unsuccessful in espousing their point of view in the ICJ via a letter; moreover, the jurisprudence of ICJ in terms of cases akin Nirbhaya are none; therefore the ICJ will continue its trend of ‘State-Only’ conception of international legal personality.

Individual Complaint Mechanism under International Human Rights Law

The Nirbhaya convicts rather than taking recourse to the ICJ could have sought remedies under individual complaint mechanism of Individual Covenant on Civil and Political Rights (ICCPR), however this would also be a futile exercise considering the fact that, India is not a signatory to the Optional Protocol of ICCPR.The ICCPR under Article 28 provides for the establishment of the Human Rights Committee (HRC) consisting of 18 members. The committee meets three times per year; the State party must submit a report to the HRC dealing with the implementation of the ICCPR’s provisions, after the initial report a State has to submit periodic reports, based on which the committee prepares its concluding observations. Further, the HRC is competent to entertain an individual complaint for alleged violation of an individual’s rights under ICCPR. The HRC also provides general comments to clarify the contents of ICCPR’S provisions. Assuming that India is a signatory to the optional protocol of ICCPR,TheNirbhaya convicts hypothetically speaking could have approached the HRC by taking recourse to Article 6(2) of ICCPR which reads:

“In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes by the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out according to a final judgement rendered by a competent court”.

Assuming that the convicts approached the HRC, literal interpretation of the above provision points out that, the crime of rape and murder falls under the ambit of ‘most serious crimes’, however, India does not have codified list of crimes which constitutes ‘most serious crimes’, it is upon the courts in India to determine the same on a case to case basis, in short, it is a matter of pure judicial discretion. The general comment no.36 on Article 6 of ICCPR on the right to life in paragraph 16 implicitly recognise that countries which have not abolished the death penalty, to lay out clear and stringent criteria for retaining capital punishment; moreover the HRC in August 2019 identified the list of issues before submission of the fourth periodic report of India, one of the issue being the elaboration on any comprehensive review of the relevant legislation to ensure that the death penalty may be imposed only for the most severe crime and indicate whether the imposition of the death penalty is mandatory for certain crimes. The legislature in India requires to framean enumerative list of ‘most serious crimes’, which fits the death penalty template, instead of passing the buck to the judiciary.  Despite the cacophony surrounding the Nirbhaya verdict, justice was meted out to the victim on 20th March with the hanging of the convicts.

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International Law

Affixing China’s Liability for COVID-19 spread

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Authors: Manini Syali and Alisha Syali*

The article analyses whether International Environmental Law can be invoked for making China liable for the COVID-19 pandemic, which is said to have its origin in the wet markets of Wuhan, and if there exists an interrelationship between Right to Health and Environment.

The world is currently witnessing an unprecedented health crisis in the form of the COVID-19 outbreak, which is said to have its origin in the wet markets of Chinese city of Wuhan, infamous for its exotic meat products widely consumed by the local populations in the name of prevailing superstitious practices. The virus which has now affected 199 countries, has resulted in a death toll of 34,000 so far. China on the other hand is on a road to recovery and has started lifting the lock downs, which for months made its population live in isolation. The question arising at this stage is whether China should be made responsible for the apocalyptic conditions it has brought before the world community, despite its previous promises to shut down its wet markets during the 2003 SARS outbreak and if International legal framework regulating Trans boundary environmental damage is appropriate to affix this liability. An attempt in this article will, thus, be made to analyse the law on Trans boundary environmental damage in the context of contagious disease transmission across sovereign borders.

Development of law on Trans boundary environmental damage

In the Trail Smelter arbitration, the world community for the first time witnessed that the concept of ‘sovereignty’ is not absolute and no nation state can be allowed to use its sovereign territory in such a manner so as to cause harm to another nation state.The tribunal in this case laid down the principle in the following words “under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”

The concept, however, took a concrete shape only through the Principle 21 of the Stockholm Declaration, which went on to impose responsibility upon nation States for ensuring that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

A major criticism against the primary International environmental instruments, namely the Stockholm Declaration and the Rio Declaration, has been that they remain in the form of soft law norms and never actually had any strong enforcement mechanism behind them. It would, however, not be wrong to state that this proposition does not hold good any longer and International jurisprudence has also proved the contrary. A good example of the same is the landmark Nuclear Weapons Advisory Opinion of the International Court of Justice (ICJ), in which ‘the due diligence obligations’ of nation states in Trans boundary contexts were upheld by the World Court. The Court took note of the looming threats which nuclear weapons pose on the environment and went on to highlight that “environment can never be seen in abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.” The court further laid emphasis on the general obligation of States to ensure that activities within their jurisdiction and control, respect the environment of other States or of areas beyond national control and held it to be a part of the corpus of international law relating to the environment.

A similar question was also again raised before the ICJ in the case between Ecuador vs. Colombia (2008) .The incident involved spray of herbicide by Colombia in the sovereign territory of Ecuador and it was contended that Colombia has violated its obligations under international law by causing or allowing the deposit on the territory of Ecuador of toxic herbicides that have caused damage to human health, property and the environment. The case, however, was settled amicably by both the parties but nonetheless raises interesting observations with respect to International responsibility of nation states to not harm the sound environmental conditions of other member nations of the world community.

Does the concept of Trans boundary Environmental damage hold application when Human Health is in a jeopardy?

Environment related rights have not been expressly incorporated in any of the Human Rights instrument existing at the International level. The International Covenant on Economic, Social and Cultural Rights (ICESCR)under Article 12 (b), has nonetheless mentioned improvement of environmental hygiene to be a precondition of Right to Health. The drafters of the Covenant with the help of this provision, thus, acknowledged the existing interrelationship between right to health and sound environmental conditions.

Furthermore, under modern day International Law, nature has never been seen in isolation and has always been interpreted in the context of socio-economic environment, artificially constructed by mankind. It is pertinent to note that both the Stockholm Conference (United Nations Conference on the Human Environment) and the Rio Conference (United Nations Conference on Environment and Development) were titled in such a manner that they remained reflective of the Human development aspects attached to them. The titles further demonstrate that these key environmental law conferences and the legal instruments, which were a by-product of them, never truly focused on nature conservation in isolation from man-kind. In fact, the two leading Environmental Conventions i.e. Convention on Bio-Diversity and United Nations Framework Convention on Climate Change (UNFCCC) look at sustainable development as a matter of concern and  do not  have nature conservation as their primary objective. It can thus be stated that the subject matter of international environment law is sustainable use of environment by human beings.

An analysis of the above discussed legal propositions, thus, makes it clear that the currently existing International Enviro-legal jurisprudence is sufficient to hold a nation state accountable, if a contagious disease travels across its borders and causes damage of a trans-boundary nature. The reason behind this is that there exist a requirement to exercise due diligence while undertaking any activity within the sovereign borders. Furthermore, this pre-condition to any developmental or commercial activity does not remain limited to not causing harm to the ‘natural eco-system’ and includes granting protection to  human survival as well, because, the word environment under International Environmental Law,is inclusive of the man-made environment and safe and healthy living conditions of the present generation and of the generations unborn.

Conclusion

Therefore, for the purpose of affixing the liability of China under International Law, the legal framework governing Trans boundary environmental damage can be utilised, since, the spread of a contagious infection clearly demonstrates that there was a breach in observing due diligence obligations while undertaking commercial activities in the wet markets, which adversely impacted an important human right, namely, enjoyment of safe and healthy environment.

Both authors are writing in their personal capacity. All views expressed are personal.

* Alisha Syali is a BA LLB (H) Student at Amity Law School, Delhi.

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